I seem to be writing a series of posts concerning European Court of Human Rights (ECHR) cases in which the applicant complains of the failure of their (or other) national authorities to uphold their rights in connection with family-related issues. I have written several times about fathers who have complained about failures, or alleged failures, to enforce their rights of contact with their children. I have also recently written of a case in which a failure to prosecute her allegedly violent husband was held to be a breach of a woman’s human rights.
Now I turn to a third type of family issue that has been the subject of an ECHR claim: child abduction. The case McIlwrath v Russia concerned a claim by a father that his right to respect for family life under Article 8 of the European Convention on Human Rights had been breached by the failure of the Russian authorities to assist him in being reunited with his children after they had been removed to Russia by their mother from their habitual place of residence in Italy.
Now before I proceed I should say that for the sake of clarity this post will only cover the very basics of this quite complex case. I realise that there are a number of important issues that I will not cover, and I mean no disrespect by not covering them, but I feel that to do so would make this post over-long, and would detract from the central issue. I hope that my summary does ‘justice’ to the case.
As I have indicated, the case arose out of an abduction of the children by the mother – a quite blatant abduction, in fact. The facts were as follows. The father is American but lives in Italy. In 1997 he married the mother, who has joint American and Russian nationality, in New York. Their first child was born that year. In 1998 the family moved to Italy, where three more children were born. The parties separated in 2007 and divorce proceedings were issued in Italy in 2009.
In August 2011, while the divorce proceedings were still ongoing, the mother removed the children to Russia, without the father’s permission or knowledge, and in contravention of an Italian court order. Since then the father has engaged in strenuous efforts to secure the return of the children and to maintain contact with them. Those efforts have involved various court proceedings, both in Italy and in Russia, and have also entailed him travelling to Russia on more than fifty occasions. All of his efforts were to be in vain, at least in respect of the youngest two children, who he has not seen since 2014.
It is important, however, to point out that the father was unable to utilise the summary return procedure under the Hague Convention on Child Abduction, as the Convention did not enter into force between Russia and Italy until July 2016. Obviously, had he been able to do so then the outcome of the case may have been very different. As the ECHR noted:
“In [Convention] cases, the presumption is in favour of the prompt return of the child to the “left-behind” parent. That rule is supported by serious considerations of public order: the “abductor” parent should not be permitted to benefit from his or her own wrong, should not be able to legalise a factual situation brought about by the wrongful removal of the child, and should not be permitted to choose a new forum for a dispute which has already been resolved in another country. Such a presumption in favour of return is supposed to discourage this type of behaviour and promote “the general interest in ensuring respect for the rule of law”
Ultimately, what the father’s claim against the Russian authorities turned upon was the time it took the Russian courts to deal with the case. It was not until May 2014 that the Russian court made a final order in respect of the children, ironically deciding that they should reside with their mother, in view of the time that they had by then been living with her in Russia. The ECHR considered “that the time it took the domestic court to finally determine the dispute, along with the absence of any temporary regulation of the [father’s] contact rights since December 2012, had irremediable consequences for relations between the [father] and his children and resulted in de facto determination of the matter.”
Accordingly, the ECHR considered that the Russian authorities had failed in their duty to assist the father in addressing the claims he was making, and thus to comply with their obligation under Article 8. The ECHR ordered that Russia should pay the father damages of 12,500 Euros.
The full report of the case can be read here.